How To Lose a Rape Trial

In August 2008 we finally came to the state charges for rape, assault and witness tampering.  The same issues of credibility were in play and the case was much easier for us as the more concrete evidence that killed us in the federal gun case were not relevant to the rape case.  It was to be a classic he said/she said contest.

At first the case unrolled beautifully.  The victim's lack of credibility was on full display.  The state handed me a bonus early on when they forgot to ID the defendant as the perpetrator which is an essential element that the state has to prove.  Then disaster struck.

My client began making noise about representing himself.  I knew that if I raised the ID issue at the close of the state's case that the judge was likely to allow the State to reopen to prove the case.  I also believed that the judge knew that the ID had not been approved based on some discussion during an ex parte discussion in chambers (done with state approval).  The reason for the ex parte discussion was to discuss my client's increasingly difficult behavior and the possibility of him representing himself.

When we came back in I made a tactical decision that I had to raise the ID issue and do a premature motion to acquit rather than have the client throw it away by confronting witnesses directly himself.  I did so and the judge agreed state was allowed to reopen. I was fired shortly after.  My client began to question our shortest simplest witness and seemed to realize he was over his head and so rehired me.  The ID issue was gone.

We proceeded through the rest of our witnesses and we were still doing well on the merits.  The client made a last minute decision to represent himself.  As I called his name he swept about 100 pounds of paper from the defense table and threw the table toward the bench.  The client was tackled by four bailiffs and the jury was evacuated.  I moved for a mistrial but the prosecutor was prepared with a copy of the federal judge's order denying my mistrial motion in the Federal gun case when the client had a lesser outburst in front of that jury.  The state judge accepted the order as precedent.

We rested. 

At closing, I argued the credibility issues described in my previous post on the federal gun charges.  Amazingly, the jury was out for over four hours (not the 5 minutes everyone anticipated after the outburst).  Several notes indicated that they were hung on the rape charge although it became apparent that they agreed on the assault charge early on.  Finally they came back guilty on all  counts.

In sum, due to the client's lack of control we threw away a guaranteed win on the ID issue, a probable win on the merits and any hope of a lenient sentence (yet to be determined).

Comments

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[Amir Tayyab]

Glen, I agree with you whole-heartedly. The jury is there to give more than 90% of their decision-making time and energies at the evidence instead of a foolish or any emotional outburst of someone accused. Standing as being accused when you are actually innocent, carries a big burden of restraint on shoulders of not only the accused but jury, judge and attorney.

[Glen R. Graham]

It is heart-breaking to lose on all counts, when at least some leniency was possible, and possibly a "win" on some of the counts. Clients who lose "emotional" control, lose credibility with the jury. I am considering advising my clients about "role" playing and putting them in the shoes of the jury. What does a jury think about a defendant who ignores his counsel's advice and attempts to represent himself? What do jurors think about a defendant who shows signs of a loss of emotional control? What do jurors think about a client who laughs or smiles or who "looks" like thy do not comprehend the seriousness of the situation? Sometimes a jury expert or a person to spend enormous amounts of time discussing "common sense" things like how to dress (don't dress like a drug dealer) (don't dress like a person who doesn't respect the system or a "criminal") behave yourself!
I just assume people have "common sense" when in reality this is not always true. Of course, all clients are human, and to be human, someone once said "to err is human" but maybe not every error should amount to "proof" or any "evidence" what-so-ever that the defendant is guilty. So, the argument is my client is a "fool" or my client is a "baboon" but that is not the question, the question is did he do the crime? You should judge the sufficiency of the case by the sufficiency of the evidence and not the content of his character or his emotional outbursts. Maybe request a jury instruction regarding the limited consideration or irrelevancy of emotional out-bursts - you would probably have to make it up --- ?
Yours in the Defense of Fellow "Human Beings"
Glen R. Graham, Attorney at Law, Tulsa, Oklahoma

[JT]

It's a shame that such a defense was interfered with by a client who couldn't keep his mouth shut long enough to be found innocent.